Hodges v. Colson

Decision Date14 August 2013
Docket NumberNo. 09–5021.,09–5021.
PartiesHenry HODGES, Petitioner–Appellant, v. Roland COLSON, Warden, Respondent–Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

OPINION TEXT STARTS HERE

ARGUED:Kelley J. Henry, Office of the Federal Public Defender, Nashville, Tennessee, for Appellant. James E. Gaylord, Office of the Tennessee Attorney General, Nashville, Tennessee, for Appellee. ON BRIEF:Kelley J. Henry, Gretchen L. Swift, Office of the Federal Public Defender, Nashville, Tennessee, for Appellant. James E. Gaylord, Angele M. Gregory, Office of the Tennessee Attorney General, Nashville, Tennessee, for Appellee.

Before: BATCHELDER, Chief Judge; COOK and WHITE, Circuit Judges.

BATCHELDER, C.J., delivered the opinion of the court, in which COOK, J., joined, and WHITE, J., joined in part. WHITE, J. (pp. 545–51), delivered a separate opinion dissenting from Part III of the majority opinion.

AMENDED OPINION

ALICE M. BATCHELDER, Chief Judge.

In 1992, a Tennessee jury convicted PetitionerAppellant Henry Hodges of first-degree murder and sentenced him to death. The state courts upheld the conviction and sentence on appeal and denied Hodges's petition for post-conviction relief. Hodges then petitioned for federal habeas relief, which the district court denied. Hodges now appeals that denial to this court. For the following reasons, we AFFIRM the district court's denial of Hodges's habeas petition.

FACTS

The Tennessee Supreme Court summarized the facts of this case as follows:

The defendant, Henry Eugene Hodges, entered a guilty plea and was convicted of premeditated first-degree murder. Thereafter, the penalty phase of the trial commenced. The State presented proof of the circumstances of the offense through the testimony of Trina Brown, the defendant's fifteen-year-old girlfriend. Brown testified that one week before the murder she and the twenty-four-year-old defendant, who were living with the defendant's brother in Smyrna, Tennessee, decided to move to Florida. To get money for the move, Hodges, a male homosexual prostitute, told Brown that he would rob and kill the next person who propositioned him. Hodges discussed with Brown how the crimes would be carried out. Hodges repeated these statements on May 14, 1990, the day of this murder.

On the night of May 14, Brown and Hodges went to Centennial Park in Nashville. When the victim, Ronald Bassett, approached, Hodges talked with him, and they left together in the victim's vehicle and went to the victim's residence at 3133A, Parthenon Avenue, across from Centennial Park. Ten or fifteen minutes later, Hodges returned to the park on foot, and along with Brown, drove back to the victim's residence in his own car. Hodges told Brown to lie down in the backseat of the car so no one could see her. When they arrived at the victim's residence, Hodges told Brown to wait in the car. After an unspecified period of time, Hodges returned to the car, wearing gloves, and asked Brown to come into the house. Brown testified that when she arrived, Bassett was lying face down on the bed in his bedroom with a pillow over his head. Hodges had bound his feet together with duct tape and had handcuffed his hands. While Bassett lay helplessly, Brown and the defendant ransacked the house searching for items of value. After obtaining the personal identification number for the victim's automatic teller card, Brown and the defendant “took a break,” drank a coke, and discussed whether to kill Bassett. Brown testified that she told Hodges to kill Bassett to prevent their arrest. Hodges then went into the bedroom and, ignoring the victim's pleas not to kill him, strangled Bassett to death with a nylon rope. Brown testified that she heard Bassett moan and make a choking sound and that it took about five minutes for Bassett to die.

In an attempt to remove any fingerprints, the defendant wiped off various items in the residence. After turning the air conditioner in Bassett's bedroom on high to prevent discovery of the body, Hodges and Brown left the victim's residence, taking the victim's automobile and several items of personal property, including jewelry, a gun, and a VCR. After using Bassett's automatic teller card to withdraw the twenty-four-hour maximum of four hundred dollars from his account, the pair returned to the house of the defendant's brother and went to bed. The next day, having learned that the victim's body had been discovered, Brown and the defendant abandoned the victim's car in rural Rutherford County and drove to Georgia in their own car. They were eventually arrested in North Carolina. Items of the victim's personal property were found in their possession at this time. Also, the defendant's fingerprints were found on items inside Bassett's home, and Brown had been photographed withdrawing money with Bassett's automatic teller card.

Testifying for the State at the sentencing hearing, Dr. Charles Harlan, the chief medical examiner for Metropolitan Nashville and Davidson County, confirmed that Bassett had died from ligature strangulation. Dr. Harlan opined that Bassett would have remained alive and conscious for at least three and perhaps as long as five minutes during the strangulation. Harlan also found abrasions on the victim's wrists consistent with handcuffs.

The State proved that the defendant had been convicted of armed robbery, attempted kidnaping and robbery in Hamilton County in 1984. The State also established that the defendant had been convicted of murder in Fulton County, Georgia, in July 1990. The record reveals that the Georgia killing occurred when the defendant and Brown arrived in Atlanta after murdering Bassett. Hodges made arrangements with a man to engage in homosexual acts for an agreed price. Hodges accompanied the man to his motel room, but when the man was unable to pay the agreed price, Hodges murdered him.

In mitigation, the defendant testified and also presented the testimony of his mother, his brothers and Dr. Barry Nurcombe, a child psychiatrist. This proof showed that the defendant was the next to youngest of his mother's five sons. His mother and father were not married. His father was actually married to another woman, but engaged in what one of the witnesses described as an “irregular union” with the defendant's mother for eighteen years. The defendant's father abused the defendant's mother and was strict with the defendant's brothers, three of whom were the children of another man. The defendant, however, was his father's favorite and was spoiled. Financial difficultiesforced the family to move about frequently, and defendant's father supported the family only sporadically.

The defense introduced proof to show that Hodges seemed normal until he was twelve years old. At that time, he began to associate with older boys, sniff glue and gasoline, be truant from school, and run away from home. He also engaged in sexual activities with his younger brother and attempted sexual activities with a female cousin. He became involved with the juvenile authorities and was confined to a juvenile facility in Chattanooga.

Through his mitigation proof, the defendant attempted to establish that a catalyst and major contributing cause of his delinquent and later criminal behavior was his rape and sexual abuse by a stranger when he was twelve years old. According to the defendant, he accepted a stranger's offer of a ride home when he was playing a short distance from his home on Fessler's Lane in Nashville. Rather than driving Hodges home, the stranger drove Hodges to his home and raped him. Fearing rejection by his homophobic father and driven by guilt, the defendant told no one of this incident until he was arrested in 1990.

Dr. Nurcombe testified that, while the defendant suffered from an antisocial personality disorder, low self-esteem, and substance (marijuana) abuse, the killing was motivated by a subconscious desire for revenge for the sexual abuse inflicted on him when he was twelve, coupled with Hodges' fear that his family might discover that he was engaged in homosexual prostitution since Brown had told Hodge's [sic] sister-in-law shortly before the killing that he was a homosexual prostitute. The defense also introduced testimony that Brown dominated and manipulated the defendant.

In rebuttal the State called Dr. James Kyser, a forensic psychiatrist, and Dr. Leonard Morgan, a clinical psychologist. Both had examined the defendant and concluded that he suffered from an antisocial personality disorder. They described persons with this disorder as having “no conscience,” being “self centered,” being “notoriously dishonest and untruthful,” and having “very little regard for the feelings of others and ... willing to use any means to get what they want, no matter who it hurts.” While acknowledging the complicated factors involved in antisocial personality disorders, the State's experts discounted the singular importance of the one incident of alleged sexual abuse in causing the defendant's actions. Dr. Morgan concluded that the defendant “was in complete control of his behavior” and not suffering from mental illness or emotional disturbance.

Based on the evidence presented, the jury determined that the State had proven the existence of three aggravating circumstances beyond a reasonable doubt: (1) [t]he defendant was previously convicted of one or more felonies, other than the present charge whose statutory elements involve the use of violence to the person;” (2) [t]he murder was especially heinous, atrocious or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death;” and (3) [t]he murder was committed while the defendant was engaged in committing, or was an accomplice in the commission of, or attempting to commit, or fleeing after committing a robbery.” Tenn.Code Ann. § 39–13–204(i)(2); (i)(5) and (i)(7) (1991 Repl.). In addition, the jury found that the aggravating...

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